‘Red Flag’ Laws Turn the Presumption of Innocence on its Head

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Our friends in the Civilian Disarmament Industrial Complex see this as a feature, not a bug.

Eagle County Sheriff James van Beek argues in a Facebook post that the ERPO process makes gun owners “guilty until proven innocent.” He notes that when the subject of an ERPO tries to have it terminated, “the burden of proof is not on the petitioner (the accuser), as in every other legal case, but instead, is placed on the respondent (defendant) to prove that the accusations are wrong.”

He observes that “proving one’s sanity could be very difficult, as it is highly subjective.” Nor is “proving one’s sanity,” however that’s defined, enough to prevail, since a person may be considered a threat even if he does not qualify for a psychiatric diagnosis. …

The basic problem, as with other “red flag” laws, is that the process is rigged against the respondent from the beginning. Once a temporary, ex parte ERPO is issued (as it probably will be), there is apt to be a bias in favor of extending it and against terminating it early, since the respondent already has been deemed a threat (even if the standard of proof was initially weak), and the possibly deadly consequences of letting him possess guns will loom large.

Given that bias, the indeterminacy of “significant risk,” and the difficulty of predicting a respondent’s behavior, it seems inevitable that the vast majority of people who lose their constitutional rights under this sort of law will pose no real threat to themselves or others.

– Jacob Sullum in Colorado’s New ‘Red Flag’ Law Illustrates the Pitfalls of Disarming People Based on Their Future Behavior

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